The Office for Civil Rights (OCR) at the U.S. Department of Education just announced it is interpreting Title IX, which bans discrimination on the basis of sex at federally funded schools and colleges, to include sexual preference and gender identity. This will lead to unintended consequences because many pro-gay programs explicitly discriminate against people who are straight.
We already know that it is discrimination when an all-girls club excludes boys. A reasonable boy knows that Girls Who Code is not open to him, and OCR has agreed and required such programs to stop discriminating.
Likewise, advertising a third-party scholarship that is only for women and not men violates Title IX. OCR has agreed and has required colleges to remove such listings from their websites.
It doesn’t matter that colleges mean well or cite national statistics about gender disparities. Discrimination without a compelling justification and narrowly tailored solution violates the law. In Podberesky v. Kirwan(1994), for instance, the Fourth Circuit invalidated a blacks-only scholarship because the university couldn’t show it had narrowly tailored its reverse discrimination or that it had discriminated for acceptable reasons.
I have filed more than 100 Title IX complaints, outlining hundreds of violations—they are everywhere.
The same line of argument holds, if OCR’s new interpretation were correct, for programs and scholarships that are limited on the basis of sexual preference or gender identity. There is no basis for accepting that a majority has no rights under a law based on equal protection.
Following OCR’s current logic, colleges that advertise LGBT grants and scholarships are violating Title IX. These include the following, which are now the subject of federal civil rights complaints that I just filed:
·The University of Washington’s advertisement of scholarships from the Pride Foundation and the Point Foundation, the Tang Scholarship, theColin Higgins Foundation Youth Courage Awards, the Gamma Mu Scholarships, and more.
·Swarthmore College’s advertisement of scholarships from the League Foundation, COLAGE, and the Point Foundation, and the same Higgins award.
·Cal State Fullerton’s Ericksen LGBTQ Grant Program for students in financial emergencies.
At Cal State, if you face a financial emergency, you can only access the Ericksen funds if you are “undocumented, LGBTQ+ and/or … exploring [your] sexual orientation and/or gender identity.” Note well: Cal State Fullerton wants to know your personal business or if you’re questioning your identity before it will let you get this emergency money.
The university was discriminating before, and it now also is committing a federal civil rights violation.
But OCR is wrong to interpret Title IX this way in the first place. OCR is relying on the Supreme Court’s Bostock opinion, which did not construe Title IX and only interpreted the word “sex” for situations where actual biological sex would make a difference in treatment by the one discriminating. The full range of sexual preferences and gender assertions is not protected by Bostock—or by Title IX.
Furthermore, all of this results from a mere “notice of interpretation” rather than a regulation, which is supposed to go through legally mandated public notice and comment. OCR’s Title IX regulation went through a demanding process and deserves deference. It points out that “sex” is based on exactly two sexes.
In contrast, today’s OCR promises enforcement on the basis of no regulation, just a faulty interpretation, like the Obama-era OCR that unlawfully enforced “dear colleague” letters without going through the proper rule-making.
Too much time has passed since Bostock, fully a year ago, for OCR to claim any emergency justification for changing the rules and avoiding public comment. We might expect a lawsuit against OCR when a university gets in trouble under the new interpretation.
But let’s see what else happens if OCR’s interpretation holds sway. Colleges that recognize clubs or have “safe spaces” for non-straight students now must ensure that they enact and effectively communicate nondiscrimination. It is not enough to have a blanket nondiscrimination statement on the college website, because a reasonable person looks at “LGBT Club” or “LGBT Center” and knows who is included and who is excluded.
Campus lawyers need to get the language and activities right, case by case, so that each program is offered equitably to all. If not, they should get ready to receive Title IX complaints.
And we haven’t even discussed all the trouble OCR has caused itself in the areas of sports, locker rooms, bathrooms, and so on.
Now that OCR has announced it will fight discrimination in the areas of sexual preference and gender identity, it must fight this discrimination in all its forms. That means stopping anti-straight as well as anti-gay discrimination. What’s sauce for the goose is sauce for the gander.
Adam Kissel is former Deputy Assistant Secretary at the U.S. Department of Education.
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